The Poverty of Posner's Pragmatism: Balancing Away Liberty After 9/11

Abstract

This review of Richard Posner's Not a Suicide Pact: The Constitution in a Time of National Emergency argues that Posner's particular brand of pragmatic utilitarianism is particularly ill-suited to constitutional interpretation, as it seems to negate the very idea of precommitment that is so essential to constitutionalism. Instead, Posner treats the Constitution as little more than an invitation to pragmatic policy judgment, and then employs that judgment through speculative cost-benefit balancing to find constitutionally unobjectionable most of what the Bush Administration has done thus far in the war on terror, including coercive interrogation, incommunicado detention, warrantless wiretapping, and ethnic profiling. Indeed, Posner's Constitution would permit the Administration to go much further than it has - among other things, he defends indefinite preventive detention, banning Islamic extremist rhetoric, mass wiretapping of the entire nation, and making it a crime for newspapers to publish classified information. All of this is permissible, Posner argues, because unless the Constitution bend[s] in the face of threats to our national security, it will break.

Ironically, Posner reaches these results with a constitutional theory more in keeping with Chief Justice Earl Warren than Justice Antonin Scalia. Eschewing popular conservative attacks on judicial activism, Posner argues that given the open-ended character of many of the Constitution's most important terms, it is not objectionable, but inevitable, that constitutional law is judge-made. He dismisses the constitutional theories of textualism and originalism favored by many conservative judges and scholars as canards. But having rejected textualism and originalism, Posner proceeds unwittingly to offer a book-length demonstration of what textualists and originalists most fear from constitutional theorists who emphasize the document's open-ended and evolving character. In Posner's approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on others.

The review first discusses Posner's analysis of several specific security-liberty issues, in order to illustrate how his method works in concrete scenarios. I then turn to the broader implications his theory has for constitutional law, which in my view are quite dangerous.